Even though the boat may have sailed in the US senate, there still may be time to help stop it in the House. The following press release and letter were sent by the National Caucus of Environmental Legislators including Iowa State Representatives Charles Isenhart, Marti Anderson, John Forbes, Bruce Hunter, Jerry Kearns, Dan Kelly, Charles McConkey, Art Staed and State Senator William Dotzler.

State legislators from across the country have sent a​ ​letter​ to Congressional leadership and Senate and House members urging a “no” vote on the Trade Promotion Authority legislation as voted out of committee. The letter (below) was circulated by Iowa State Representative Charles Isenhart and Vermont State Senator Virginia Lyons, both of whom are members of the National Caucus of Environmental Legislators (NCEL) and environmental leaders in their states and nationally. The letter was signed by 110 legislators from 41 states.

“Congress has a unique opportunity to protect our democracy, environment, and workers by rejecting fast track authority. Free trade negotiations go beyond tariffs and include policies that can threaten state environmental regulations,” said Lyons, who serves on the Vermont
Legislature’s Joint Energy Committee and is Co­Chair of the state’s Commission on International Trade and State Sovereignty.

“Emerging local renewable energy and other businesses lose when large multinational organizations determine rules of trade and rules of regulation ­ all behind closed doors,” Lyons stated. “So­-called ‘fast track’ authority limits Congressional oversight over a process that lacks transparency and threatens the fabric of our democratic system of state sovereignty. ”

Rep. Charles Isenhart echoed these concerns. “Trade agreements are negotiated in secrecy and state legislators are not at the table,” he said. “While virtually every investor group is well represented among the USTR’s more than 600 ‘citizen’ advisors, almost no legislators are. Yet these agreements can put at risk important state initiatives including clean energy policies and advanced biofuel incentives.”

Isenhart is the Ranking Member of the Iowa House Environmental Protection Committee and also serves on the Economic Growth Committee and Ways and Means Committee. He added, “Changes in the current Trade Promotion Authority legislation fall far short of fixing fundamental flaws in both the negotiation process and the agreements themselves, including the system of private justice that sidesteps our courts and gives foreign investors greater authority over policy than elected officials. Whatever the promises of the current administration, there are no guarantees that future administrations will follow through on the commitments of this one. In other words – as state legislators, we have no say, we can’t see, and we reap what others sow.”

Among the signers of the letter was Massachusetts State Representative Denise Provost, who spoke to negotiators of the Trans­Atlantic Trade and Investment Partnership (TTIP) during the 9th​​ round of negotiations in New York City in April.

“As an elected official, I am particularly concerned about provisions in these agreements that subordinate our domestic legal systems to Investor State Dispute Settlement tribunals, which betrays constitutional principles, and represents the worst kind of corporate domination,” Provost said.

The legislators’ letter raises concerns not only about the pending Trade Promotion Authority legislation but also about likely provisions in the TTIP, the Transpacific Partnership (TPP) and the Trade in Services Agreement (TISA) with the potential not only to undermine existing state environmental laws and regulations but also to chill future state policies inconsistent with the terms of these agreements. All would be covered by the speeded­up review and approval process known as Fast Track.

As elected members of our state legislatures from across the United States, we write to urge you to reject the “Fast Track” version of trade promotion authority legislation as currently drafted and instead support a new process that is transparent, democratic, and accountable.

In July, we wrote to the Senate Finance Committee with suggested changes to the Fast Track legislation as introduced. We stated then, and reiterate now, the need for a new trade authority to provide significant and substantive opportunities for Congress to hold executive branch negotiators accountable. We remain eager to work with you to develop a process that can achieve the level of review and oversight intended by the U.S. Constitution. We believe such oversight to be absolutely necessary for modern international agreements with the breadth and reach of a Trans-Pacific Partnership (TPP) or Trans-Atlantic Trade and Investment Agreement (TTIP).

The lack of transparency – indeed, extreme secrecy – of the trade negotiation process, coupled with the failure of negotiators to meaningfully consult on the far-reaching impact of these agreements on state and local laws, even when binding on our states, is of grave concern to us. As state legislators, we are not at the table. Of the more than 600 cleared advisors to the U.S. Trade Representative, two state legislators have been invited to participate. Thus, we depend on Congress to create a new mechanism that provides for Congress to conduct the in-depth review and oversight these powerful international agreements require. When Congress abdicates much of its authority, as it does in the Fast Track process, our democracy suffers.

Moreover, requirements for “regulatory coherence” and “minimum standard of treatment” provisions included in these trade agreements, and the investor-state system of private justice that can be invoked by investors to challenge federal, state and local laws and regulations, threatens the U.S. system of federalism enshrined in our Constitution. Our federalist system reserves significant authority to state legislators to regulate to ensure a level playing field for workers and businesses and to implement meaningful human rights, labor and environmental standards – authority that is threatened by these trade pact provisions.

The Investor-State Dispute Settlement (ISDS) procedures included in recent and pending trade agreements, including the recently leaked TPP investment chapter, are of particular concern. ISDS allows foreign investors the right to sue governments directly in offshore private investment tribunals, bypassing the courts or allowing a “second bite” if the investors do not like the results of domestic court decisions. Although the investor-state tribunal has no power to directly nullify U.S. federal, state, and local laws, in practice, when a country loses to an investor, it will change the offending law, or pay damages, or both. Moreover, a country need not even lose an ISDS case for the chilling effect of a case merely being threatened or filed to impact its future policy making deliberations.

Indeed, in our own experience as state legislators, we have directly experienced that chilling effect. It is not uncommon for investors and foreign governments alike to seek to chill non-discriminatory state legislative action on matters of public health, safety and welfare, with threats of legal challenges based on international trade agreements. State legislative examples we are aware of include electronic waste producer responsibility laws, regulation of water extraction, tax haven restrictions, GMO labeling, and regulation of toxics in consumer products. Current ISDS litigation includes many challenges to environmental regulation, including oversight of hydraulic fracturing and mining.

State legislators have a longstanding and clear position opposing investor-state dispute settlement clauses in trade agreements, memorialized in the policy of the National Conference of State Legislatures (NCSL), which represents all 50 states and the District of Columbia: “…NCSL will not support any BIT or FTA that provides for investor/state dispute resolution. NCSL firmly believes that when a state adopts a nondiscriminatory law or regulation intended to serve a public purpose, it shall not constitute a violation of an investment agreement or treaty, even if the change in the legal environment thwarts the foreign investors’ previous expectations.” [Readopted August 2013: http://www.ncsl.org/ncsl-in-dc/task-forces/policieslabor-and-economic-development.aspx#trade ]

The undersigned state legislators strongly endorse this position, and urge you in your oversight capacity to remove any investor-state dispute settlement clause from inclusion in the TPP, TTIP or other international trade or investment agreement that may be negotiated in the future.

Many of the undersigned legislators serve on the environment and natural resources committees of our legislatures and have leadership roles advancing environmental protections in our states. We are deeply concerned about public reports of potential provisions in both the TPP and TTIP agreements that would undermine these protections, including provisions on or related to investment and energy exports. With respect to TTIP, we are troubled by reports that the European Union is seeking binding provisions that would facilitate expanded exports of both liquefied natural gas and crude oil. With respect to the TPP, we are very concerned that the U.S. Department of Energy would lose its ability to even review whether exports of natural gas are in the interest of the public, should that agreement include national treatment for trade in gas.

The trade negotiation process is deeply flawed, and it appears to be resulting in deeply flawed trade agreements, namely the TPP and TTIP. Congress has the ultimate responsibility to oversee these agreements and put a stop to overreaching provisions that usurp the legitimate, non-discriminatory exercise of legislative authority to protect the public health and welfare. The pending Fast Track/Trade Promotion Authority legislation undermines this Congressional responsibility. We urge you to reject this approach and instead engage in robust, transparent and inclusive oversight of both the negotiation process and the agreements themselves.